Legal Feeds Blog

With the Ontario government reintroducing the protection of public participation act, the Canadian Civil Liberties Association and Pro Bono Law Ontario are partnering up to help those who may be targets of SLAPPs — strategic litigation against public participation.

Cara Zwibel says the CCLA/PBLO program alreasy has six or eight lawyers on board.

“Because the government announced the reintroduction of the legislation, we thought it was a good time to let people know what we’re doing,” says Cara Zwibel, director of the fundamental freedoms program at the CCLA.

While they’re just getting the program up and running, it will essentially provide an intake process for potential pro bono or reduced-cost legal assistance to those targeted by SLAPPs. They already have a roster of lawyers willing to help.

“We’ve started with a small group. It’s six or eight lawyers that we’ve got,” says Zwibel, who’s hoping for a more formal launch of the program in January.

“If the individual is eligible, the lawyer considers whether it’s something they can take on,” she adds.

The assistance may involve something as simple as a letter to respond to an initial SLAPP threat all the way up to full legal representation, if merited and the case reaches that point.

“It’s really to just try and level things off for those who are the targets of these lawsuits,” says Zwibel. She adds the lawyer could also decide the lawsuit is legitimate.

SLAPPs are a tool sometimes used by developers or companies against individuals who protest projects, often in environmental and municipal planning disputes. The new legislation would provide for a fast-track process in which a judge would have the power to apply a legal test to determine if the case could proceed. The court would hear a request to dismiss a case within 60 days.

It’s the Ontario government’s latest attempt at passing a bill to address SLAPPs after previous efforts languished under the former minority government. While many states in the U.S. have anti-SLAPP legislation, Quebec is the only province in Canada to have it. British Columbia had it up until 2001 but it was repealed.

While this project is timely given the recent announcement about reviving the bill, Zwibel says SLAPPs are an issue the CCLA has been working on for some time.

“Even if the legislation doesn’t pass, I think this is something we’ll continue to pursue,” she says, noting the CCLA had been advocating for legislation to address SLAPPs.

And while the legislation has met with some resistance, particularly from some northern Ontario resource companies and municipalities, Zwibel believes the concerns about the courts dismissing worthy claims are “misplaced.” The law, she says, isn’t a licence to slander as it merely creates a process to deal with potential SLAPPs so defendants don’t go bankrupt in the face of large claims.

Borden Ladner Gervais LLP lawyers Daniel Urbas and Amélie Gouin are not criminal lawyers, but when they heard about the parents of Montreal student Jun Lin, who was killed and dismembered in the summer of 2012, they say they wanted to help them anyway.

Daniel Urbas says Jun Lin's parents are finding the Canadian open court system and the robust role of the defence remarkable.

On top of their unimaginable grief, the lawyers say they knew Lin’s parents, who are from China, must try to cope with cultural and linguistic barriers while trying to find answers within the Canadian justice system.

“We asked ourselves a simple question. Amélie and I asked, ‘If this type of thing happened to us while we were in a foreign country, what would we want someone to do?” Urbas says. “The answer obviously is anything and everything.”

“We knew enough as lawyers and regular citizens that the criminal process can be tough for victims and that there’s going to be a lot of legal questions for the family to answer and that’s the minimum that we could offer to do,” Urbas says.

So this week, when Lin’s father attended the trial for the accused Luka Magnotta, Gouin and Urbas, both commercial litigators, were there — answering questions through interpreters. Since approaching the family two years ago, the lawyers say they’ve helped them select evidence they need or don’t need to see, gotten them to and from the courtroom, assisted them in finding accommodation or just a nice restaurant where they could eat.

Although they’re not criminal lawyers, Gouin and Urbas say they’re “tenacious” and able to find answers to questions they’re unfamiliar with. But, “it soon became more about how to make this entire process a little bit more tolerable for the family,” Urbas says.

So far, they’ve had to explain the values underlying a criminal trial in Canada, including the presumption of innocence, the burden of proof on the Crown, and the role of the defence counsel.

“What they’ve noticed the most is the number of steps that are in the process to ensure that the prosecution gets to make its case, the defendant gets to make a robust defence, and the media has access,” Urbas adds. “So the open court system combined with the robust rules for defending the accused — they found this remarkable.”

At first, Lin’s family was reluctant about taking Urbas and Gouin’s offer. It took convincing them that it was a genuine pro bono offer, says Urbas, adding they were still “open-minded and trusting.”

Representing people who are going through terrible grief, something the two lawyers don’t have a lot of experience in, has been “humbling,” says Urbas.

“You have to sort of put aside your own reaction to the evidence and say, ‘If I were in that situation, what would I want to be done?’”

The lawyers say they wont speak about the issues in the trial or details about the family.

Magnotta, a Montreal porn actor and model, had admitted to the physical act of killing Lin and mailing his dismembered body parts to different addresses in Canada but he has pleaded not guilty. His defence counsel will argue his client is not criminally responsible because he suffers from mental illness.

Saskatoon- and Regina-based McKercher LLP received the Canadian National Pro Bono Law Firm Award. McKercher provides pro bono legal services to low-income people and non-profit organizations through Community Legal Assistance for Saskatoon Inner City (CLASSIC), Pro Bono Law Saskatchewan, and Pro Bono Students Canada. The firm was recognized in three areas: helping citizens who are not covered by public funding; working with community organizations; and providing innovative legal services.

McKercher has worked to help deliver legal assistance to remote areas of Saskatchewan where individuals can’t get access to legal services.

“Using technology, we set up peer-to-peer opportunities so someone could, for example, go to the local Salvation Army location and one of our lawyers would speak to them over Skype,” says David Stack, pro bono co-ordinator and partner at McKercher LLP.

The firm’s articling students also fill in for law students who would normally assist at the CLASSIC clinic.

“It’s part of their articling rotation to spend time at the inner city pro bono clinic, which they really enjoy,” he says.

Despite the revenue and resource pressures many firms face these days, over the last few years Stack says McKercher’s pro bono “investment” has increased, not decreased.

“We made a commitment that we wanted to help by making sure that access to justice wasn’t just for the privileged few and we also recognized that a lot of the young lawyers were really interested and want to do this. We wanted to provide them with encouragement and opportunity,” says Stack. “I think it makes them enjoy the workplace more.”

Duncan Marsden of Borden Ladner Gervais LLP in Calgary received the Canadian National Pro Bono Distinguished Service Award for his contribution to the provision of pro bono legal services. Marsden was nominated by BLG managing partner and CEO Sean Weir for the work he has done over his legal career.

His practice is exclusively employment focused and some of his pro bono work is related to employment law but also includes human rights issues.

Last year, he represented a 14-year-old gay high school student from a small community in Alberta. The student was in the school band but was told that on a planned overnight trip to a band camp in Banff, he would not be allowed to stay in the dormitory with the other boys.

“We started with a letter and we pointed out to the school the error of their ways,” says Marsden. “To their credit, they realized what they had done and created a number of initiatives that included an equality and anti-bullying assembly and creation of pamphlets that were sent to parents.”

He also helps at the provincial court and the Court of Queen’s Bench as duty counsel. Some of his ongoing cases involve Canadian military veterans with post-traumatic stress disorder and other injuries whose pension entitlement has been denied.

“We are doing a number of judicial review applications on behalf of these individuals who have no money,” he says.

And when a friend’s child was diagnosed with mitochondrial disease, Marsden assisted in establishing MitoCanada as a charity that raises awareness for the disease.

Marsden says BLG is a “trailblazer” in the area of law firm pro bono policies. “In a world where we are ruled by the billable hour, BLG makes it possible for me to do these things by saying if you have an approved pro bono matter — it goes through a committee — every hour you work on that counts towards your billable hour target,” he says. “It allows me to do these things when I otherwise wouldn’t.”

He says many junior lawyers have gained experience working on pro bono files with him over the years.

“We will be going to the federal court to do a judicial review application and how often are you able to do that? It creates experience you would never otherwise get for junior lawyers,” he says.

“In the day of the disappearing trial, how often do we get to go trial as litigators? Almost never.”

Finally, Connect Legal, an Ontario organization that advances economic development in Canada by promoting entrepreneurship in immigrant communities, received the Canadian National Pro Bono Program Award.

As legal aid budgets are squeezed, more members of the public are looking for pro bono services to help with their legal needs. Into that gap comes the recently formed Pro Bono Canada.

'The idea of Pro Bono Canada is that we will not be direct program deliverers, but we’ll be helping support the expansion of pro bono,' says Dennis O’Connor

Incorporated last fall, Pro Bono Canada is an initiative born out of the five provincial pro bono organizations in B.C., Alberta, Saskatchewan, Ontario, and Quebec. It will be having it’s coming-out party at the National Pro Bono Conference in Regina this week, which will be for many lawyers their first exposure to the organization.

“The idea of Pro Bono Canada is that we will not be direct program deliverers, but we’ll be helping support the expansion of pro bono,” says Dennis O’Connor, former associate chief justice of Ontario and chairman of organization.

Along with O’Connor, the organization is run by the executive directors of the five provincial pro bono groups and two other trustees: former Supreme Court of Canada justice Marie Deschamps and former B.C. chief justice Lance Finch.

In the past year, Pro Bono Canada has begun working on a number of initiatives. One of their primary goals is to help start pro bono organizations in the provinces and territories that currently don’t have any.

“The whole idea of it is to promote pro bono service, to give it a national voice, and have a centre where other jurisdictions that are trying to get pro bono up and running can come and get information and be connected with the groups that have already started successful programs,” says Kara-Dawn Jordan, executive director of Pro Bono Law Saskatchewan.

The organization is already in discussions with Nova Scotia, Prince Edward Island, Yukon, and the Northwest Territories about starting up pro bono groups in those jurisdictions.

“That is one of our objects, to promote and assist with expansion,” says O’Connor.

But Pro Bono Canada isn’t looking to provide any services directly to the public.

“The people in the provinces and the communities, ultimately they’re going to be the volunteers and will have to run their own programs,” says O’Connor.

The organization has also partnered with Pro Bono Students Canada to develop and administer a survey to law firms about their pro bono activities. O’Connor says that the idea is to let students know which firms are the most committed to pro bono work so that they can factor that into their decision-making when they’re searching for a job.

One way that Pro Bono Canada is looking to fund itself is through cy-près awards given out in class action settlements.

“There is a natural connection between class actions and pro bono,” says O’Connor. “Class actions are tool that the provinces have put in place to address access to justice problems for certain types of cases.”

Pro Bono Canada has created material that encourages lawyers to consider the organization for any cy-près awards that are given out.

“If we were to receive funds, then we have a transparent formula where we would then filter the money down to provincial organizations who actually deliver the programs,” says O’Connor.

While access to justice has become a more acute problem, Jordan believes the legal community has been stepping up to the challenge. O’Connor points out that last year, almost 30,000 Canadians were provided pro bono services.

“It’s a good news story for the legal profession and I’m not sure as to how widely appreciated it is,” he says.

Her Majesty the Queen has lost her discrimination case against Pro Bono Law Ontario.

In a Human Rights Tribunal of Ontario decision on July 25, vice chairman David Muir rejected the applicant’s claim the organization acted in a discriminatory manner when it declined to assist with a civil suit for wages allegedly owing for the Queen’s reign. The organization argued the case had no reasonable chance of success.

The Queen, however, isn’t the head of state most of us think of when we hear that term. Instead, it’s someone who legally changed his first name to Her Majesty and his last name to Queen.

“Although he identified himself to the tribunal by his previous legal name, he has submitted documentation to the tribunal that appears to confirm his change of legal name, including a document of name change issued under the Vital Statistics Act, dated March 20, 2014,” wrote Muir in The Queen v. Pro Bono Law Ontario.

According to Muir, the Queen said he had schizophrenia and alleged discrimination on the basis of disability in Pro Bono Law Ontario’s decision not to assist him.

“At the hearing, I asked the applicant to elaborate on the reasons why he believes that the respondent would not assist him because he is a person with a mental health disability,” wrote Muir in summarizing the case.

“The applicant argued that he has been a consumer of psychiatric treatment and on various medications for many years. He argued as well that the fact that he is a person with a disability would be obvious to anyone who interacted with him. He agrees that the respondent advised him that it would not take his case because it appeared to have no reasonable prospect of success.”

In the end, Muir found no proof of discrimination.

“The applicant asks that an inference be drawn from the fact that he is a person with a disability and that the respondent would not provide him with assistance. In the circumstances of this case, no inference can be drawn from these facts.”

Crown lawyers in three provinces are now able to carry out pro bono work with far less exposure to legal claims and less risk of running into conflicts of interest.

Bill Basran says his time at Vancouver’s wills clinic has been ‘an enormously gratifying experience.’

Three year-long pilot schemes allowing Department of Justice lawyers to volunteer at legal clinics in British Columbia, Alberta, and Ontario have received official approval.

Crown counsel can only volunteer for departmentally approved activities and have traditionally been restricted in the level of insurance coverage they can obtain for pro bono work. It has also been difficult for government lawyers to rule out potential conflicts of interests, due to the enormous scope of legal cases involving the federal government.

Under the new policy, lawyers will be insured to work at the three legal clinics in Vancouver, Edmonton, and Ottawa, on specific areas of law screened by the government to minimize conflicts. Justice Minister Peter MacKay announced the move during a speech at the University of Calgary’s law faculty on Friday.

He said: “Accessibility to justice has become increasingly important in the complex society we live in today.

“Through this initiative and policy, many Justice Canada lawyers here in Alberta and across the country, can now volunteer their considerable legal skills and knowledge in providing pro bono legal services to Canadians.”

The three approved projects are:

• The Wills Clinic operated by Access Pro Bono B.C., located at the Justice Access Centre at the Vancouver Courthouse. Trained pro bono lawyers and articling students draft and execute simple wills, representation agreements, and powers of attorney for seniors living with low incomes and people who have terminal illnesses.

• The Edmonton Community Legal Centre, which provides a variety of pro bono legal information and advice to people living with low incomes. Justice lawyers volunteering at the centre are limited to providing pro bono legal advice on landlord and tenant matters.

• Law Help Ontario at the Ottawa Court House, which provides pro bono legal help to unrepresented people living with limited means who are suing or being sued in civil court. Department of Justice lawyers volunteering at the clinic are limited to providing pro bono legal advice to non-family civil litigants in Small Claims Court and the Ontario Superior Court.

The pro bono policy document explicitly prohibits volunteer work in the areas of criminal law, habeus corpus matters, and “any other matter involving the Minister of Justice and Attorney General of Canada.”

Volunteering will normally take place outside of working hours, except “on an exceptional basis,” it says.

The development has been several years in the making. In the past few years, some law societies have started providing no-fee liability insurance to Crown lawyers who participate in pro bono activities approved by their law societies.

The insurance is now available to lawyers in Ontario, Alberta, B.C., and Saskatchewan.

This has opened up the possibility of pro bono work, but the department has also needed to work with pro bono organizations on practicalities such as avoiding conflicts of interest, explains Bill Basran, director general of the Department of Justice’s B.C. regional office and who has been closely involved with the project.

Basran has been volunteering at the Vancouver wills clinic and describes his time there as “an enormously gratifying experience,” that has involved helping people to put their affairs in order at the end of their life.

The department now wants to expand the pro bono scheme to other cities and is considering opening clinics in Toronto and Saskatoon.

“We’ve received a lot of interest from Justice lawyers across the department,” he says.

Lisa Blais, president of the Association of Justice Counsel, says her organization “applauds the attempt to increase access to justice” and looks forward to the program being expanded.

The unavailability of insurance had previously been the biggest concern of ACJ members, regarding pro bono work, she states.

Whereas pro bono files sometimes contribute towards performance targets for lawyers in private practice, this has not been written into the policy for the Crowns.

“It would be up to individual managers to consider that type of contribution in performance appraisals,” says Blais.

Check out Canadian Lawyer’s April issue for more news and views on pro bono work, including the results of a national survey of lawyers and firms.

Immigration lawyers have launched a pro bono scheme aimed at helping survivors of the Philippines typhoon move to Canada.

Canadian lawyers are mobilizing to help Filipino families with sponsoring relatives affected by Typhoon Haiyan. (Photo: Athit Perawongmetha/Reuters)

The lawyers, from the Canadian Bar Association’s national immigration law section, will give free services to families wishing to sponsor relatives living in areas affected by last month’s Typhoon Haiyan.

They are offering initial legal consultations and assistance with preparing immigration applications for Canadians and permanent residents in Canada.

The CBA has also built an online interactive map to help users find participating lawyers in each province, and a checklist explaining how the program works.

The map is in the process of being updated, but section chair Mario Bellissimo says he expects the final number of lawyers taking part to be “in the dozens.”

The lawyers hope the initiative will be picked up via social media and that Filipino clients will help spread the word.

Bellissimo admits it isn’t always easy for people whose communities have been destroyed to provide the identification documents normally required by immigration officials.

But there are ways around this, he explains.

“There are exemptions. Sometimes there may be statutory declarations from family members, or some other record [to help identify the person].”

For example, baptism certificates or pay stubs may be accepted in some circumstances.

“As lawyers, we can be fairly innovative and instruct clients on things they wouldn’t necessarily think of on their own,” he says. “We try to get as creative as possible…though there has to be a balance so someone doesn’t sneak in who shouldn’t be here.”

Asked how many people the lawyers hoped to help, Bellissimo says: “I wouldn’t be surprised if it was in the hundreds.”

The tropical cyclone swept into the Philippines on Nov. 8, flattening homes and killing more than 6,000 people.

“We understand that sponsoring a relative can be a complicated process at the best of times,” said Catherine Sas, a lawyer involved in the program. “Given the challenges families in Canada are facing, we are prepared to review applications to make sure that documents are in order,” she added.

Citizenship and Immigration Canada announced last month it would prioritize the processing of applications already in progress on request from Filipinos who were “significantly and personally affected” by the disaster.

To help people take advantage of this, Miller Thomson LLP at the time offered to provide pro bono immigration legal services to Filipinos affected by the typhoon.

Pro Bono Students Canada hosted a luncheon with former Supreme Court of Canada judge Claire L’Heureux-Dubé at McCarthy Tétrault LLP in Toronto on March 8. L’Heureux-Dubé spoke about her experience on the bench and how the profession can improve access to justice.

Photos: Heather Gardiner

Students mingle at the Pro Bono Students Canada luncheon on March 8 that featured former Supreme Court of Canada judge Claire L’Heureux-Dubé.

(l to r) McCarthy Tétrault LLP partner Matthew Kelleher, University of Toronto law student Brendan Stevens, and Osgoode Hall Law School student and 4Students columnist Rebecca Lockwood. Stevens and Lockwood are also co-ordinators of Pro Bono Students Canada.

After being frustrated with the “inappropriate” gift giving that occurs in the profession, a member of the legal community says she has the answer.

Say It Forward, a pro bono program created by Neeson Court Reporting, will offer firms a financial perk for using Neeson’s services.

Beginning Feb. 15, for every $20 spent on transcripts at Neeson Court Reporting, firms will be provided with a $1 “redemption of services” credit they can use towards transcript and ancillary services for pro bono matters.

The program’s creator Kimberley Neeson, president of Neeson Court Reporting, says she came up the program as an “answer” to the unethical gift-giving dilemmas that she has witnessed over the years.

“Choices are being made simply because of the incentive,” says Nesson, who has participated in focus groups where she has witnessed the trend. “I’m really hoping that law firms choose their service providers based on neutrality, competency, and pricing.”

Nesson says she has seen firm employees rewarded with gifts that range from an all-expense-paid trip to Las Vegas, days at the spa, and large-scale parties, all for booking at a particular court reporting firm.

“My belief is a firm should be booked because it is the right place to conduct a discovery or hearing for your client,” wrote Neeson in a press release. “I also believe that this type of gift really belongs to the client, the person who is ultimately paying for the disbursement of fees to a court reporting agency.”

For Neeson, the program is her way of not only thanking her clients, but also a way to “help a lot of people in need”

“I’m really trying to do something innovative and I truly hope that it will help some people,” says Nesson, who says the program has been met with a positive response. “I hope that it’s sort of a feel good for all of us, because we’re giving back as a collective to people that can’t otherwise access justice.”

Firms who sign up for the program will be given a Say it Forward account, enabling all of their lawyers to participate. They will have a full calendar year to use their credits, and have the option to donate their remaining balance to Pro Bono Law Ontario once the calendar year ends, giving the organization a year to utilize the donations.

“Pro Bono Law Ontario could certainly use a lot of our services,” says Neeson, who worked alongside the organization when creating the program. “I want to give back, and I want to give back in a meaningful way, and I think pro bono touches all of us in this community.”

But for firms that don’t need to use the credits, Nesson says they can still go to a good cause. Firms that sign up for a Say it Forward account can immediately pledge their credits to PBLO.

“We think it’s a creative and excellent idea,” says Matthew Cohen, PBLO’s director of litigation projects. “We have always seen pro bono as a movement that touches all participants in the justice system.”

Cohen believes the program will be a “great way” to extend pro bono work into the court reporting industry, an area PBLO hasn’t worked with in the past.

“We’re hoping that a lot of firms will engage in this,” says Nesson, noting that the program is directly tied to collecting credit from a typical transcripts order. “If you can’t use it, then PBLO certainly can, and they will benefit from it directly, and that means a lot of Ontarians can benefit from all of the work that we’re all doing collectively.”

Got a legal question but not sure who to ask? If you’re a teenager in Ontario, you’re in luck because a new legal helpline will soon be available. Early next week, Teen Legal Helpline, a free, confidential service that connects teenagers to lawyers, is launching.

The Teen Legal Helpline launches in Ontario next week.

How it works is if you’ve got a question, go to Teen Legal Helpline’s web site, submit your question, and a lawyer will provide an answer. You can also ask the lawyer follow-up questions and he or she can guide you through the justice system.

The helpline’s main purpose is to assist teens who don’t know where to turn for legal help.

“Teens have legal questions that don’t always call for full representation,” says Matt Boulos, executive director and one of the founders of Teen Legal Helpline.

“Sometimes you just need an answer to your question so you can understand your problem and so that you can make the right decision. And that decision might be to get more help but at the very least if you don’t get that first answer, you’ll never know.”

At first, the helpline will be limited to questions in the areas of criminal, family, and immigration law, with labour and employment and housing law to be added at a later date.

Boulos says they decided to focus on those areas of law based on research they conducted with teens in Ontario, specifically in Toronto’s St. James Town and Regent Park neighbourhoods.

Boulos created the helpline after being involved in a legal situation with a teen in his youth group.

“I grew up in Scarborough, [Ont.,] I mentored kids in the same youth group that I grew up in. One of my boys had been accused of a sexual assault and he had come up to me asking me for my advice. I knew a criminal lawyer, and had the two chat. What struck me was it was an incredibly brief conversation but then [the boy] knew what he needed to do in terms of how to carry himself and understanding the process with the police and the investigation,” Boulos tells Legal Feeds.

“I just couldn’t really abide by the idea that there were going to be teens out there who were going to be in a similar position but not have the good fortune to show up at a youth group that just happened to have lawyers and people connected to the law hanging around,” he adds.

The lawyers who have signed up to volunteer for the helpline are mainly solo practitioners and lawyers from small firms, says Boulos. However, bigger law firms, including Torys LLP and Blake Cassels & Graydon LLP, have provided other legal services pro bono to help Teen Legal Helpline get started.

The helpline has also been funded through a grant from the Law Foundation of Ontario and private donations, and they are in the midst of a major fundraising drive.

Boulos hopes to get the word out to teens through their relationships with community organizations and social workers. They also have youth ambassadors — teens who have started a social media campaign to spread the word to other teens.